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Associate Attorney General Brand Delivers Remarks to the Washington, D.C. Lawyers Chapter of the Federalist Society

Washington, DC

United States

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Thursday, February 15, 2018

Remarks as prepared for delivery.

Thank you, Dean, for that introduction. It’s a pleasure to be here with the Federalist Society, and in particular to speak to the DC lawyers chapter.

These monthly lunches in Chinatown have become a Washington institution, and I’m honored to be included in your line-up.

Before I begin, I’d like to pause and note that our hearts are with the students, parents, and entire community after the shootings yesterday in Florida. It’s almost impossible to imagine the grief they are experiencing, and we hold them in our prayers. As the Attorney General said this morning, we are committed to doing everything we can to support the community and law enforcement as they recover and investigate the reasons for this unspeakable crime. The Attorney General has already directed the office of Legal Policy to work with other agencies to study the intersection of mental health and criminality in order to prevent these crimes from happening in the future.

When Dean asked me to give this speech, he said I could talk about whatever I wanted. It’s not easy to pick just one topic among so many interesting and important issues confronting the Justice Department.

So I’ve decided not to pick just one subject, but to give you a few highlights of what DOJ has accomplished during the first year of Attorney General Sessions’ tenure.

Let me start by saying what an honor it has been to serve again in the Department of Justice.

It has particularly been a pleasure to serve with this Attorney General.

Jeff Sessions is focused on keeping America safe both from foreign terrorist threats and from violent crime in America’s cities. He’s tackling the opioid crisis. He’s going after gangs such as MS-13.

And importantly, he is committed to ensuring that everything DOJ does promotes the rule of law. That commitment is being carried out by all of us at DOJ every day.

I have been blessed to work with an extremely talented, dedicated, and hard-working team of lawyers at DOJ, some of whom are here today. My staff in the Associate AG’s office is top notch and has been indispensable to me.

I’d like to recognize those who are here, including my Principal Deputy, Jesse Panuccio.

The same goes for the leadership and the career ranks in the litigating divisions, which I’ve had the honor of overseeing.

Jeff Wood happens to be here today – the Acting Assistant for DOJ’s environmental division. He and all of us at the Department are waiting eagerly for the Senate to confirm Jeff Clark to be the Assistant AG. In the meantime, Jeff Wood is doing a tremendous job, and it has been a pleasure to work with him.

On the Associate AG’s side of the house, one of the primary ways DOJ promotes the rule of law is how it conducts litigation on behalf of the U.S. Government.

This presents some challenges that lawyers outside the government don’t face.

The Department of Justice is not your typical litigant or litigator.

For one thing, we don’t represent individual clients in the usual sense. Although we often talk about representing “client” agencies when we’re defending an agency against a challenge to a rulemaking or a tort claim, the agency technically isn’t our client.

We represent the United States. And when you represent the United States, it’s not just about winning.

Most importantly, DOJ litigates in the public interest. That is, DOJ lawyers have to think about whether the outcome they are seeking is appropriate, not only whether it’s achievable.

We also have to think about whether the arguments we make are consistent with law – not just whether we could convince a court to buy them in order to win the case.

So, for example, DOJ shouldn’t argue for a strained construction of a statute – one that the text won’t bear – to achieve a policy outcome.

We also have to think about the consequences of our arguments in any given case for all the other cases we litigate.

For example, we can’t make concessions on issues such as standing or mootness in one case if it will make it harder for us to defend the government elsewhere.

I know that it can be frustrating to people outside the Department when we can’t easily dispose of a case to achieve a policy outcome. But we are playing on a chess board that is much bigger than any one case.

The rule of law also informs how we exercise the Attorney General’s authority to settle litigation.

Again, we are not your typical litigant. For example, whereas a private defendant settling a case is playing with his own money, we are negotiating with the taxpayer’s money.

We take very seriously our responsibility to the public fisc, particularly in cases where the funds to pay a settlement would come out of the judgment fund instead of the “client” agency’s appropriated budget.

The judgment fund is essentially an unlimited, permanent appropriation that allows the Treasury to pay money judgments against the United States.

Agencies are naturally more cautious in settling litigation when they have to pay the settlement out of their finite annual appropriation. At DOJ, we need to make sure that neither we nor the agency play fast and loose with the seemingly bottomless pot of money in the judgment fund. That’s why I have asked our litigators to state in their settlement memoranda where the money for a potential settlement would come from.

Protecting the public fisc is something the Attorney General takes seriously. He took a big step in that direction last year when he prohibited DOJ from including so-called “third party payments” in settlements.

In the past, DOJ had often included in settlements a requirement that the defendant pay money to third parties – usually, non-profit organizations or interest groups – that were neither parties in litigation nor victims of the conduct at issue in the case.

Over the years, the Department directed billions of dollars to organizations ranging from universities to community redevelopment groups.

The Department also included cy pres clauses in some settlements, under which funds from the Treasury were directed to third parties instead of back to the taxpayer.

One of the worst examples of this was in the Keepseagle case, where the Department settled a suit against the government by creating a $680 million fund to pay individual claimants. After all individual claims were paid out, a whopping $300 million was leftover. Under the settlement’s cy pres clause, around 90% of these unclaimed funds will go to nonprofit groups identified by a trust controlled by the plaintiffs’ counsel. That means that hundreds of millions of dollars of the taxpayer’s money will be spent in ways never appropriated by Congress, with virtually no oversight.

Third-party payments raise serious legal, policy, and ethical concerns. If a payment is imposed as a penalty for misconduct, then it should be paid to the Treasury. Funds intended to make victims whole should be paid to the victims. And even if one assumes that third-party payments are lawful, they create the appearance of political favoritism and cronyism.

The Department of Justice should not use its settlement authority to subsidize favored causes or political allies. Under the Attorney General’s memorandum from last June, it no longer does.

Another settlement-related issue the Department is examining is the use of consent decrees to settle affirmative litigation. In some areas of enforcement, DOJ has in the past entered into consent decrees almost reflexively, when an out-of-court settlement agreement would have been sufficient to achieve the Department’s enforcement objective.

Unlike an out-of-court settlement, a consent decree puts a court in the position of managing the day-to-day operations of the entity under the decree. At a minimum, this is not a core judicial function. And in some cases, it goes on for many years.

The Antitrust Division tells me that they have hundreds of open consent decrees. Many of them are over 100 years old. One of them is a 104-year-old decree governing rubber hoof pads for horse shoes. Another, from 1921, governs the market for music rolls for player pianos. Under Makan Delrahim’s leadership, the Antitrust Division has begun the process of reviewing and potentially terminating outdated decrees.

Consent decrees governing a state or local government agency also raise federalism questions.

Vesting supervision of a local agency with a federal court deprives the people of democratic control of their government. Budget and policy judgments are taken away from the people and given to a judge or a monitor. And because some decrees last through many election cycles, the people cannot even use the electoral process to bring about policy changes.

Consent decrees will continue to be necessary in some cases, particularly where the court’s ongoing supervision is the only way to ensure compliance with the settlement’s terms. But DOJ’s litigators are now asking themselves whether a consent decree is a necessary means for achieving DOJ’s goals in any given case.

As DOJ litigates in the interests of justice, taking into account everything I just mentioned, it has been doing so in an extremely challenging litigation environment.

One of the biggest challenges we face is defending multiple lawsuits in multiple courts challenging the same governmental action.

The plaintiffs in these cases often seek preliminary injunctions against the enforcement of a new federal policy, and an increasing number of judges are willing to issue nationwide injunctions. That is, a single judge in a single district enjoins a new policy from being implemented anywhere in the country. The result is that DOJ has to run the tables in litigation, but our opponents only have to win once—even if we win the first five cases, a loss in the sixth might shut a program down.

There are real questions about whether nationwide injunctions are consistent with Article III of the Constitution, since they grant relief to parties not before the court. In fact, rather than calling them nationwide injunctions, the term “non-party injunctions” might be more apt. Whatever you call them, we are challenging their legality in several cases now.

Speaking of judges, the last time I spoke in this venue, about eleven years ago during my last tour of duty at DOJ, my topic was judicial appointments. Helping the President select and secure confirmation of federal judges was the highlight of my time as Assistant Attorney General for Legal Policy because it mattered so much – judicial appointments are more enduring than just about anything else a President does.

It has been a real privilege to serve again in an Administration that takes judicial appointments so seriously. While I can’t take any credit on this issue in my current role, I can tell you – if it wasn’t obvious – that one of the Administration’s biggest accomplishments to date has been the President’s appointments of brilliant, qualified judges who we know will respect the law and the limits of the judicial function, whether or not we agree with their decision in any given case. Don McGahn has done a tremendous job pushing these appointments forward, and I’m proud of the work that Beth Williams and her team at OLP are doing to support that effort.

DOJ is also using its litigation authority to protect First Amendment freedoms.

The Attorney General recently launched an initiative to promote free speech on college campuses. The threats to free speech on campus are too concerning for the Department to sit idly by.

As the Attorney General put it in his speech at Georgetown Law last fall, “[t]he right to freely examine the moral and the immoral, the prudent and the foolish, the practical and the inefficient, and the right to argue for their merits or demerits remain indispensable for a healthy republic.”

James Madison called free speech “the only effectual guardian of every other right.”

This is especially important on campus. The freedom to test the merits of a proposition and sharpen one’s opinions by debating opposing viewpoints are at the heart of a liberal arts education.

And yet too many colleges find it more important for students to be comfortable and affirmed. By policy or inaction, they are restricting students’ speech or enabling students to silence speech they find disagreeable.

Some colleges actively restrict speech. They might do that through a speech code that bans “offensive” speech, which administrators can use to ban whatever they don’t like.

Or a school might say it supports free speech but impose so many bureaucratic barriers to speech – such as tiny free speech zones or strict permitting requirements – that it is almost impossible for speakers to reach an audience. There are many stories of overbearing enforcement of those rules, including a case in Michigan where students were arrested and put in a jail cell for handing out copies of the U.S. Constitution without a permit.

Other schools have effectively codified a heckler’s veto by singling out controversial speakers for stricter rules. Under Berkeley’s new policy, speakers that the school believes will “interfer[e] with other campus functions or activities” are only allowed to speak at times and locations when no one is likely to attend, and are required to pay for more security. So if you want to silence a speaker you don’t like, threaten to riot, and the school will box in his speech so that very few will hear it.

The effect this has on the quality of higher education is concerning no matter where it occurs, but when it happens at a public college, it has constitutional implications.

Students have begun to sue public universities for violating their First Amendment rights, and DOJ has begun to support them with Statements of Interest in those cases. We have filed three so far, most recently in a suit challenging the Berkeley policy I mentioned a moment ago.

The Department is looking for more of these cases – if you know of one, bring it to our attention. And contrary to what you will read in the media, we don’t just support free speech for conservatives. If there is a meritorious case brought against a university by a liberal student, we would love to know about it.

I’ll mention one other type of case in which DOJ is looking to get involved.

Many of you are familiar with CAFA, the Class Action Fairness Act. Congress enacted CAFA in 2005 to address abuses in class action litigation. The Act focused especially on making sure that class action settlements provide real recovery to class members and not just big payouts to plaintiffs’ lawyers. Class action settlements aren’t final until after the court holds a fairness hearing.

A lesser-known requirement of CAFA is that proposed class action settlements must be served on the Attorney General at least 90 days before being entered by a court. This should give the Attorney General a chance to review the fairness of the settlement and possibly weigh in with the court.

I recently asked our litigators what happens to these notifications. It turns out that DOJ receives over 700 CAFA notices every year, but has only participated in two cases, and those were more than a decade ago.

Why? It wasn’t for a lack of worthy cases. It was an almost comical story of government bureaucracy. Mail to the Attorney General undergoes what the mailroom calls “strict scrutiny.” This means a CAFA notice goes through multiple mail rooms, each in a different government building and each requiring weeks of processing and sorting. They’re scanned by X-ray machines, which makes any CDs in the package unreadable. And that’s just the mailroom process. On average, it would take 70 days from receipt until a lawyer reviewed the notice. Often, they weren’t reviewed by a lawyer until after the fairness hearing or even after the settlement had been finalized.

We’ve begun to fix that process, and are already in a better position to review settlements. If a settlement isn’t fair or reasonable under CAFA, DOJ may file a statement of interest saying so. Be on the lookout in the coming days for the first example.

I want to close by talking about one of the Department’s top policy priorities – regulatory reform.

Across the Administration, we are working hard to reduce the impact of unnecessary regulations on individuals and the economy. And where we do regulate, we aim to do so lawfully.

I serve as DOJ’s Regulatory Reform Officer and the chair of our Regulatory Reform Task Force. Our goal has been for DOJ’s conduct to be a model for other agencies in the lawful exercise of regulatory power.

One of our early challenges was getting a handle on DOJ’s regulatory footprint. DOJ doesn’t put out anything like the volume of regulations issued by the EPA or the FDA. But it does have regulatory agencies including the DEA, which regulates doctors, pharmacies, and hospitals under the Controlled Substances Act; the ATF, which regulates the entire firearms industry; and the Civil Rights Division, which regulates under the ADA and other statutes.

And an agency’s regulatory impact is not limited to rules. Because the notice-and-comment rulemaking process is so slow, agencies sometimes skirt it by issuing “guidance.” Agencies often claim these documents are not binding on the public, but then treat them as though they are.

This is not just inconsistent with the technical requirements of the APA -- it can result in bad decision-making by agencies. The point of notice-and-comment rulemaking is to help agencies make informed decisions. Federal employees sitting in Washington cannot possibly fully understand the potential effects of a proposed regulation on the public, and the notice-and-comment process is designed to solve that problem. For all these reasons, the Attorney General recently prohibited DOJ from using guidance documents as a substitute for rulemaking. Although his memorandum cannot bind other federal agencies, we hope they will follow DOJ’s lead.

I recently took this one step further by prohibiting DOJ litigators from using other agencies’ guidance documents to establish violations of law in DOJ’s affirmative civil enforcement actions.

Guidance documents cannot impose new legal requirements on the public. And if they cannot impose new requirements, then we should not treat failure to follow them as a legal violation that subjects a party to a suit by the Justice Department.

Under the memorandum I issued last month, DOJ will no longer use civil enforcement actions to convert agency guidance documents into binding rules.

Guidance documents are not the only way that DOJ’s actions can have regulatory effect without rulemaking.

Take antitrust enforcement, for example. Where the Antitrust Division concludes that a merger would have anticompetitive effects, it should craft a remedy that cures that problem. If blocking the merger altogether is not necessary, the Department might require a structural remedy, such as selling off the particular business unit that causes the anti-competitive concern. But in the past, the Department has sometimes imposed so-called “behavioral” remedies that are just regulation by another name. In this Administration, the Antitrust Division has made clear that antitrust is law enforcement, not regulation. It will not use merger review as a hook to regulate industries in ways that are beyond the scope of antitrust enforcement.

In conclusion, the Department of Justice has accomplished a lot in the last year. I don’t have time to talk about many other accomplishments, such as securing reauthorization of Section 702 of FISA – a critical national security tool – or our work bringing sex traffickers to justice and prosecuting hate crimes. But the Attorney General is just getting started. I know we all look forward to seeing what the Department accomplishes in the coming year.

As I said at the outset, it has been a great honor to work with the Attorney General in restoring the rule of law to the Department of Justice over the last year.

Again, thank you to the Federalist Society for inviting me today and for everything it does to educate lawyers and law students on the importance of the rule of law. And thank you all for being here.